Call for Moratorium on Executions

KY Public Advocate and Louisville Metro Chief Public Defender Endorse the Call for a Moratorium on Executions and the Expeditious Implementation of the Reforms recommended by the ABA Assessment of the Kentucky Death Penalty

(Frankfort, Kentucky, December 7, 2011) Kentucky Public Advocate Ed Monahan and Louisville Metro Chief Public Defender Dan Goyette echoed today’s call by the American Bar association and the Kentucky Death Penalty Assessment Team for a suspension of executions in Kentucky until the recommendations in its December 7, 2011 report are fully implemented. Over the last two years, the Kentucky Death Penalty Assessment Team objectively reviewed the fairness, accuracy and reliability of Kentucky’s system for administering the death penalty. The review is thorough and scholarly. It was conducted by experienced, highly respected Kentucky criminal justice experts. It is a fact-based analysis supported by comprehensive, detailed evidence. It found major deficiencies that undermine the integrity of the system.

Today, Goyette and Monahan sent a request to the Governor asking that he not sign any execution warrants until the study’s reforms are put into effect. A similar request was submitted to the Attorney General asking that he not seek any execution warrants until the Kentucky Death Penalty Assessment Team recommendations are enacted.

Studies Conducted by Other StatesThe one conclusion arrived at in each study conducted in other states was that criminal justice systems with the death penalty are always more costly than criminal justice systems without the death penalty.

For example, a 2003 legislative audit in Kansas found that the estimated cost of a death penalty case was 70% more than the cost of a comparable non-death penalty case. Death penalty case costs were counted through to execution (median cost $1.26 million). Non-death penalty case costs were counted through to the end of incarceration (median cost $740,000). (December 2003 Survey by the Kansas Legislative Post Audit)

In one of the most comprehensive state studies, North Carolina discovered that it cost at least an extra $2.16 million per execution over the costs of a non-death penalty murder case and estimated additional costs to the state associated with the death penalty at $4 million per year.

Florida estimated that it spends $51 million per year on the death penalty over what it would cost to punish all first degree murderers with life without parole.

Studies in New York demonstrated that the cost of a capital trial alone would be more than double the cost of a life term in prison, and that the cost per execution would be $2 million and $118 million annually.

The average cost of a death penalty case in Texas is $2.3 million, which is three times the cost of imprisonment at the highest security level for 40 years.

The Indiana Legislative Services Agency found out that if all offenders who had received the death penalty between 1979 and 2000 had instead received life without parole, the savings to Indiana would have been about $37.1 million.

Colorado has spent more than $2.5 million on five death penalty cases under the state’s new three-judge panel sentencing system.

All of the studies also indicated that it is very difficult for most states with death penalty systems to actually get what they are paying for; most death penalty systems actually result in very few executions.

Studies conclude that the result of funding a criminal justice system with a death penalty is most often a system which represents the worst of both worlds: the state pays the extra costs to have a criminal justice system with a death penalty but actually has a criminal justice system more like a life-without-parole system.

The Death Penalty in KentuckyThis has been true of the Kentucky death penalty system since death as a possible sentence for aggravated murders was reinstituted in December 22, 1976. The following data is from December 1976 thru January 2009.

Persons on KY Death RowThere are currently 36 people on KY’s death row.

Death Sentences Returned and Reversed Since 1976Since 1976, 92 death sentences have been returned in Kentucky state courts. Of those 92, the Kentucky Supreme Court has reviewed 83 on direct appeal, 6 have yet to have the first review by the Kentucky Supreme Court and 3 inmates died before their direct appeal was decided. To date, the Kentucky Supreme Court has reversed the death sentences in 37 of those 83 cases on their initial appeal to the Court.

Of the 46 cases reviewed by the KY Supreme Court but not reversed upon direct appeal, the KY Supreme Court has reviewed 32 of them on appeal of their state post-conviction actions and has reversed 2 on that review for a total to date of 39 reversals by the KY Supreme Court. 11 still have future initial state post-conviction reviews by the KY Supreme Court available to them. 1 died while state post conviction proceedings were pending. 1 waived post conviction proceedings and was executed with that level of review by the Kentucky Supreme Court.

The Sixth Circuit Court of Appeals has completed review of 11 KY state capital convictions and has reversed 3 death sentences. Another 2 are pending review in the 6th Circuit Court of Appeals.

Of the 50 Kentucky capital cases that have exhausted review by the Kentucky Supreme Court and the Sixth Circuit Court of Appeals, 42 of them have been reversed.

35 are pending further review by a state or federal court after affirmance on the initial direct appeal to the Kentucky Supreme Court.

Executions and Natural Deaths Since 1976 3 persons have been executed; 2 of them waived some levels of appellate review.

6 inmates died prior to completion of their judicial review, 3 of them after affirmance on direct appeal by the Kentucky Supreme Court.

Commutations Since 19762 death sentences have been commuted by KY Governors.

Reversals and Commutations Since 1976The number of KY cases where judicial or executive review has determined that death was not appropriate is 44.

Death Eligible cases Since 1976DPA has records for death eligible cases from 1997 – 2004. The yearly average over those 7 years was 75.

SummarySo, of the 50 Kentucky death penalty convictions which have completed judicial or executive review, 44 of those cases have either been reversed or commuted. Of the total of 92 death penalty convictions since the reinstitution of the death penalty in Kentucky since 1976, 3 persons have actually been executed.

CostsDeath penalty cases increase average trial and appellate costs in many ways. 1. The case typically lasts much longer.2. The motion practice is more voluminous.3. The use of experts is more likely.4. Special mitigation specialists and other specialized investigators are more likely to work on the case.5. Twice as many attorneys, both prosecutors and defenders, are likely to participate in the preparation of the case as well as the actual trial.6. Juror qualification is longer and juror sequestration is more likely.7. Change of venue can increase costs in highly publicized cases.8. Death penalty trials usually take 3 to 5 times longer than typical murder trials.9. Two trials will be conducted: one for guilt and one for punishment.10. The defendant will be held in the highest security while awaiting appeal.11. The standard for review in Kentucky is a heightened standard in which the reviewing court can take note of mistakes which ordinarily would not have been preserved for review in a non-death penalty case. This makes reversals more likely in death penalty cases.12. Most death penalty cases in Kentucky are reversed on appeal. In that case, the state re-absorbs the entire cost of trial and appeal all over again, or the case is pleaded out to a non-death conclusion which defeats the purpose of pursuing the death penalty in the case from the beginning. The result, again, is a costly system which results in few executions.13. Ineffective assistance of counsel claims are often pursued after all direct appeals have failed.14. Federal habeas corpus appeals are often taken. Capital habeas corpus petitions have obtained relief at many times the rate of non-capital petitions, but federal habeas corpus actions are governed by a complex set of procedural rules.15. Innocence Projects review original trial evidence for new DNA or other evidence which might require a re-trial in the event of newly discovered evidence. Because of the narrow scope of most judicial review on appeal, there is a general tendency for evidence of innocence to emerge only at a relatively late stage in capital proceedings.16. Executive clemency is pursued. Because post conviction proceedings traditionally provide very limited review of questions of guilt or innocence, clemency is the historic remedy for preventing miscarriages of justice when the judicial process has been exhausted.17. Most additional death penalty costs cannot be eliminated as long as the state continues to have the death penalty. The 2003 ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases require extra attorneys, investigators and mitigation specialists in death cases, extra death penalty training, proper funding, monitored workloads, full post conviction review in both direct and collateral appeals, and special attention to the possibilities of executive clemency. There is no way to cut back on any of these extra death-penalty related costs and still provide adequate representation in death penalty cases.18. In the states which conducted studies, there was no saving gained by executing a defendant who might have spent many more years in prison if not executed. The additional costs associated with death penalty cases outweigh any savings later on.19. Death penalty cases require intensive costs up front. The costs of incarcerating a prisoner for life without parole are spread out over years.

Capital Conflict RatesWhen DPA is required to contract with a private attorney to handle a capital case because DPA has a conflict, DPA pays the conflict attorney $75.00 per hour up to a maximum of $30,000. Many other states have higher per hour rates and higher caps. For instance, Montana pays $120.00 per hour with no cap; Virginia pays $125.00 per hour with no cap; New York pays lead counsel $125.00 with no cap; and the federal government pays $163.00 per hour with no cap. Linked here is a study of these rates nationwide.

Total Current DPA Cost Per YearEstimating death penalty costs to Kentucky since 1976 is difficult. A proper calculation of costs associated with the death penalty statewide would require a formal study. Any references to costs outside the context of a completed study can only be estimates. These estimates likely understate actual costs because many of the costs of death penalty representation are hidden. The majority of death penalty costs do not appear as line items in any budget.

Nevertheless, of the line items specifically set aside for death penalty representation, DPA estimates that the Department currently spends approximately $3 million a year on death penalty representation. This does not include the additional spending by the judiciary, the prosecutors, and Corrections.

As a Matter of PolicyOne of the enduring realities of all policy decisions is that resources are never limitless, and every resource assigned to one project is a resource which cannot be assigned to another. Kentucky is currently spending money for a death penalty system which does not result in many executions at the same time it does not have sufficient resources for prosecutors, defenders, courts and corrections. In an era which has seen the exoneration of death row inmates by new DNA evidence as well as a national trend away from the use of the death penalty, and in a context of national and global economic downturns which may continue to threaten revenues for years, Kentucky does well to look into the issue of what it pays to have a system which includes the death penalty

DPIC Report on Costs of the Death Penalty and Police Chiefs' Views

The Death Penalty Information Center has released its latest report, "Smart on Crime: Reconsidering the Death Penalty in a Time of Economic Crisis." The report combines an analysis of the costs of the death penalty with a newly released national poll of police chiefs who put capital punishment at the bottom of their law enforcement priorities.